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Medicaid Fraud Is New Weapon in the Abortion Battleground

Michelle Hanig came home one night in April 1996, her shirt and jeans torn, and told her mother that she had been raped in a motel room by a man she had met two days earlier.

''She was in terrible, terrible shape, crying and shaking,'' said Ms. Hanig's mother, Patricia Gillming, who lives in the tiny Nebraska panhandle town of Crawford with her husband, her daughter, who was then 22, and Ms. Hanig's children. Mrs. Gillming said her daughter had called a rape crisis telephone counselor and a Lutheran minister, but would not leave the house for weeks.

''Michelle said she didn't want nothing to do with anybody,'' Mrs. Gillming said. ''She wouldn't even let her dad touch her shoulder.''

In June, Ms. Hanig's family doctor confirmed that she was pregnant, and reported the rape to the police. Ms. Hanig drove to Bellevue, Neb., eight hours away, where Dr. LeRoy Carhart performed a free abortion, knowing that Ms. Hanig was on Medicaid, and that state Medicaid programs must pay for abortions when the pregnancy resulted from rape.

But now, in what is apparently the first case of its kind, Ms. Hanig is being charged with Medicaid fraud and false reporting, because she did not press criminal charges against the man she said had raped her. The Dawes County criminal complaint charges that Ms. Hanig engaged in sexual intercourse with Wayne A. Spilinek by mutual consent, and falsely reported it as rape.

The County Attorney, Vance Haug, declined to discuss the case. And while Ms. Hanig's account is set out in her lawyer's motion to dismiss the charges, the only public record of the prosecutor's case so far is the two-paragraph criminal complaint, which does not shed any light on why law-enforcement officials believe Ms. Hanig agreed to engage in sex, or whether they see the case as a test of the state Medicaid requirements for reporting rape.

Still, the case is the latest example of Nebraska's aggressive stance on abortion.

''Nebraska is a pro-life state with a pro-life majority,'' said Gov. Ben Nelson, a Democrat. ''It's a belief I've held for as long as I can remember. I've adopted children -- it's a way of life for me. But the state is not on a mission for anything other than reflecting the values of the majority of the Legislature, which reflect the majority of people here.''

Though it has attracted little attention so far, the Hanig case is emblematic of the continuing grass-roots struggle over abortion.

Nebraska's position on abortion is played out in ways both big and small:

*In Blair, Neb., in 1994, a 15-year-old girl was taken from her parents' home, after midnight, and placed in foster care because her boyfriend's parents said she planned to have an abortion. The family's lawsuit is still pending.

*The state recently passed the nation's harshest ban on what abortion opponents call ''partial birth'' abortion, subjecting doctors to a possible prison term of up to 20 years in prison if they use the technique to perform late-term abortions. That law is now being challenged in court.

*Nebraska had to be sued -- and nearly risked losing its $390 million in Federal Medicaid money -- before its Medicaid program, as required by the 1994 Hyde amendment, would pay for abortions arising out of rape or incest. Ms. Hanig's was the only such abortion the state paid for in 1996.

*And in 1995, the office of the State Attorney General, Don Stenberg, formally asked Dr. Carhart, the doctor who performed Ms. Hanig's abortion, how he determines fetal viability. When Dr. Carhart's lawyer questioned the legal basis for the inquiry, the matter was dropped. But last year, a State Health Department investigator questioned Dr. Carhart extensively about how many abortions he performs a week, what procedures he uses, how he disposes of fetal material, and the credentials and supervision of his assistants. No further action has been taken.

While the abortion debate focuses mostly on lofty constitutional questions argued out in Washington, the daily realities for women seeking to end their pregnancies are often defined through smaller skirmishes in states like Nebraska.

Governor Nelson, who said he was aware of the Hanig case, said the state has no choice but to prosecute, if the law has been broken.

''The state, because it has to follow existing law, had to respond to the request for Medicaid payment,'' Governor Nelson said. ''I suppose it's one way to test the law. But I'm not advocating prosecutions to test the law, I think criminal charges have to be for enforcement, and I expect this case will be resolved, on the basis of the facts, so that justice will prevail.''

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In Ms. Hanig's case, it was the local police who took the first action, asking her to come to the police station for questioning the day after her doctor reported the rape. At the time, Ms. Hanig told them she did not want to report the rape or pursue a criminal investigation.

''She said it was like being raped all over again,'' Mrs. Gillming said, ''going through the whole ordeal.''

Two months later a police officer, Teresa Blausey, called Ms. Hanig again, telling her to return for a second interview -- in which Ms. Hanig repeated that she did not want to pursue criminal charges, and admitted that she had initially provided an incorrect account of the rape.

''This rape, like many others, was not committed by a stranger, but by someone she had been spending time with,'' said her lawyer, Simon Heller of the Center for Reproductive Law and Policy, in New York. ''The first time she talked to the police, I think she didn't want to tell them it had happened in his motel room, for fear that they wouldn't believe her, so she said it was in a car in a state park. The second time she told them what really happened.''

The County Attorney, Mr. Haug, offered Ms. Hanig a plea bargain that expired on Thursday: if she pleaded guilty to one of the counts, and repaid the money the state paid for the abortion, the other charge would be dropped.

Ms. Hanig, through her lawyers, declined to be interviewed. Mr. Heller said she had rejected the offer.

''This is not a case they can win in court,'' he said. ''The only real purpose is to intimidate women from ever trying to get funding for an abortion. This is a state that's extremely hostile to the right to choose abortion, penalizing an individual woman for availing herself of the rights she has been given by Congress and the courts.''

Since the abortion, Ms. Hanig, whose teen-age marriage broke up years ago, has remarried.

The criminal complaint against her, charging her with two misdemeanors that carry a maximum prison term of a year, contains several apparent errors.

The first paragraph, on the false reporting count, charges that on April 15, ''the Defendant did then and there furnish information he knew to be false to a peace officer or other official with the intent to instigate an investigation of an alleged criminal matter or to impede the investigation'' of a criminal matter.

But the rape was not reported until June, and was never reported by Ms. Hanig, the defendant, but rather by her doctor, possibly the ''he'' referred to in the complaint.

The second paragraph, charging welfare fraud, says Ms. Hanig ''claimed she had been raped to qualify for Medicare assistance'' for ''an aboration.'' But it was Medicaid, not Medicare, that covered Ms. Hanig.

Mr. Heller, in a motion to dismiss, argues that Ms. Hanig cannot be found guilty of false reporting, since she has always believed that what happened in the motel room was rape.

The County Attorney has not yet responded to that motion, and no hearing date has been set.

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A version of this article appears in print on August 3, 1997, on Page 1001021 of the National edition with the headline: Medicaid Fraud Is New Weapon in the Abortion Battleground. Order Reprints|Today's Paper|Subscribe